Colquhoun v. Wells, Fargo & Co.

By the Court, Bigelow, J. (after stating the facts as above): There being no motion for new trial, we are not permitted to review the evidence to ascertain whether it supports the verdict. The only points open for consideration here are those concerning the refusal of the court to give two instructions asked by the defendant. 1. We must suppose that the first instruction is correctly set forth in the transcript (State v. McGinnis, 5 Nev. 337), and if so, it was properly refused as being unintelligible. 2. So far as the action is based on the certificate of deposit, the material facts as alleged in the complaint are that while the defendant, a corporation, was doing a banking business at the city of Virginia, Nevada, the plaintiff deposited in the bank one thousand and eleven dollars and ninety cents, for which he received a certficate of deposit; that he then also placed this cei *461 tificate with the defendant for safe-keeping, and that “ the defendant then and there promised and agreed to safely keep and surrender and deliver to defendant Qplaintiff ] the said certificate of deposit, or pay him the sum of one thousand and eleven dollars and ninety cents,” and that defendant had failed and refused to do either. None of these allegations were denied by the answer, except the one that defendant had failed of refused to comply with its agreement; on the other hand it alleged that defendant had returned the certificate to the plaintiff, that he had indorsed it and the money had been paid thereon. These constituted then, as to this certificate, the only issues in the case. From the evidence it appeared that one Trolson,- an agent of the defendant, without defendant’s authority, had by some means possessed himself of the certificate, and had drawn the money upon it from the agency of the Nevada Bank, which had succeeded to the defendant’s business, and had converted it to his own use. The plaintiff, however, testified that he had never seen the certificate after he deposited it with the defendant, and had never authorized Trolson or any one else to draw the money upon it; that if the indorsement which appeared upon the back of the certificate was his, of which he was not certain, it was placed there at the time he left the certificate in the bank. If this evidence was true, and it was entirely uncontradieted, it certainly cannot be said as a matter of law that this indorsement, and the subsequent payment by the Nevada Bank to one who had wrongfully possessed himself of the certificate, proved either a delivery of the certificate to the plaintiff or that he had received payment thereof; and yet this is in effect what the court was asked by the second instruction to tell the jury was the law. Under the pleadings and evidence in the case we are of the opinion that this instruction was properly refused. Judgment affirmed.